The lack of clear definitions for exceptions to freedom of expression in matters concerning hate speech, including various forms of incitement, has resulted in a confusion of various concepts, such as the comparison between “hat speech” and “different forms of incitement”, which reflected itself on human rights positions towards discourses that result in the violations of other rights and freedom entitled to legal protection. This confusion has frequently led to the imposition of non objective and unnecessary restrictions on freedom of expression under the claim of protecting other rights that might be affected as a result of freedom of expression.
International jurisprudence has generally agreed to three forms of incitement that constitute an exception to freedom of expression. These are inciting violence, inciting hatred and hostility, and incitement of racial discrimination. However there is no consensus regarding the way a state should deal with each of them. Some believe there is a necessity to criminalize incitement through a criminal procedure that involves freedom restricting and financial fines against the inciters. Others believe that prohibition and criminalization should only be limited to incitement of violence, while incitement of hostility or hate or discrimination should be considered to fall within the legitimate scope of expression which should not be restricted. A third view believes that all three forms should constitute exceptions to freedom of expression, and yet the management by the state should differ from one from to the other. Inciting violence should be legally criminalized, as well as inciting discrimination resulting in direct violence; as to inciting discrimination that does not result in violence, or inciting hatred and hostility, those should be dealt with differently without resorting to criminal procedures, such as civil compensation for the victims of incitement, or administrative measures for those in state or private positions. The state should undertake awareness raising measures to confront the impact of incitement on the right to equality. AFTE believes that this is the most objective track, which should be adopted by Egyptian human rights institutions, since it balances the maintenance of freedom of expression and rejection of such expression when it violates other rights of no lesser importance than the right to freedom of expression. This approach also reduces the state’s resort to criminal punishments which should be restricted to violence.
1- Hate speech is the overall frame for different forms of incitement
Paragraph 3 of article 20 of the ICCPR specified that overall framework of exceptions to freedom of expression when it stated the necessity that the law prohibits any call for national, racial, or religious hatred that constitutes an incitement for discrimination, hostility or violence.
Based on the principles set in the second paragraph of article 20 of ICCPR it is clear that hate speech is not an independent act of the act of incitement in all its forms, but rather a wider framework that includes the different forms of incitement, i.e. all incitement of violence, hostility, hatred or discrimination is a form of hate speech provided it is based on racial discrimination.
2- Concept of hate speech
There is no clear definition of what is termed “hate speech” in international law, which led to much controversy and disagreements in trying to settle this issue. At its best there are vague unclear definitions in some local laws. The absence of such clear definition led to a confusion between what could be considered freedom of expression on the one hand and hate speech on the other, resulting in most cases in the implementation of that concept in a way that imposes several restrictions on freedom of expression as well as spread of rumors and false accusations or stereotyping a certain society of being discriminate, violent or racist against members of that society. [1]
Article IX organization defined the word “hatred” based on Camden principles concerning freedom of expression and right to equality, which the former organization has developed in collaboration with a number of human rights specialists, as follows:
“The terms ‘hatred’ and ‘hostility’ refer to intense and irrational emotions of opprobrium, enmity and detestation towards the target group”. [2]
The difficulty in accurately defining the concept of hatred is because it could extend to involve public debates, which should not be restricted, such as discussions that address individuals’ hate of police force in view of its torture of citizens, or that may lead to hatred of government because of corruption of its members. It is therefore that the second paragraph of article 20 of ICCPR had to be more specific regarding the content that would differentiate between the different forms of hate speech and to specify which of them should be prohibited and exempted from the right to freedom of expression.. The aforementioned article classified this content into three categories: national hate speech, racist hate speech and religious hate speech, all of which are forms of discrimination that are internationally prohibited, which leads us to question why article 20 chose only those forms of discrimination among several other forms. The answer to that may be traced to the timing of implementation of the ICCPR inn 1976, when the global movement against discrimination was not as strong and developed as it is today, and which later to a variety of interpretations of the criteria required for prohibition of hate speech, whether by regional human rights courts or several international law experts.
3- The necessary discriminatory criteria for prohibiting hate speech
According to the 2nd paragraph of article (20) of ICCPR the prohibited hate speech, where freedom of expression ends, must be based on the prohibited discrimination as stipulated in international human rights law. Otherwise it would be legitimate and its prohibition would be a clear violation of freedom of expression. This requires primarily a definition of what constituted discrimination, a concept that has been extensively addressed in the international convention for prohibition of all forms of racial discrimination and the conventions against all forms of discrimination against women CEDAW.
Definition of discrimination
Any distinction, exclusion, restriction or preference made on the basis of race, ethnicity, religion, sex, disability, age, sexual orientation, language, opinion, nationality, social class, property, birth, color or any other factor which has the effect or purpose of impairing or nullifying the recognition, enjoyment or equal exercise of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field”. [3]
It follows that the prohibited hate speech must be based on any of the above. In the absence of this discriminatory basis, any restriction or prohibition would be considered a form of violation of freedom of expression.
Also, hate speech is not prohibited as such and cannot be prohibited on the basis of the 2nd paragraph of article (20) of ICCPR unless it involves incitement of violence or hostility and hatred or discrimination.
4- Concept of Incitement[4]
Incitement is directly or indirectly calling upon the public to carry out an act against individuals or groups, using public means, provided this call is addressed again specific individuals or groups, even if in an indirect way such as using metaphors.
According to article (20) of ICCPR hate speech is classified into three forms:
- Incitement of Violence
WHO defined violence to be any “deliberate use of physical force or authority against an individual or a group that results in injury, death, psychological or physical harm”. [5]
Any call, direct or indirect, to the public of exercising violence against individuals or groups on the basis of aforementioned described discrimination is considered incitement of violence and is prohibited and law and must be criminalized by the state.
- Incitement of hostility/hatred
The Camden Principles on Freedom of Expression and Equality[6] defines hostility as “any act based on intense and irrational emotions of opprobrium, enmity and detestation towards specific individuals or groups”, which is the same definition put forth by the Camden principles for hatred as clarified above.
We believe that the terms hostility and hatred are quite vague and unclear as opposed to incitement of violence or discrimination. This vagueness resulted in varied interpretation that led to imposing non objective and unnecessary restrictions on freedom of expression. Therefore we believe that it is necessary that the state confronts such forms of incitement without resort to criminal procedures, but rather by raising social awareness of the public with a view to create a public opinion that rejects that kind of speech.
- Incitement of discrimination
Any public call through any public medium to undertake an act that aims to weaken or prevent equal exercise by individuals or groups of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
Inciting discrimination may result in violence in which case the state must use criminal procedures to confront the violent party as well as the inciting party as an accomplice in the crime. As for inciting discrimination that does not result in violence, it should not be criminally prosecuted. Instead the right to civil compensation must be granted the victim as well the right to respond or correct any events of which this person has been accused of in the context of incitement. The state can also use administrative punitive measures against public civil servants instead of resorting to criminal procedures which might result in freedom restricting punishments or huge financial fines. The state must also play a clear and systematic awareness raising consciousness against racial discrimination and aiming to reject it socially.
Free Expression and Incitement.pdf
1 Council of Europe, Manual on Hate Speech, September 2009; or OSCE, Hate Speech on the Internet, July 2011.
2 Camden Principles, op. cit., Principle 12.1
3 This definition is adapted from those advanced by the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Elimination of All Forms of Racial Discrimination.
4 ARTICLE 19/Prohibiting incitement to discrimination, hostility or violence -Policy Brief December 2012
5 World Health Organisation report: World Report on Violence and Health, 2002; available at: http://whqlibdoc.who.int/publications/2002/9241545623_eng.pdf.
6 Article 19 / The Camden Principles on Freedom of Expression and Equality
